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Abolition of Forced Labour Convention, 1957 (No. 105) - Guatemala (Ratification: 1959)

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Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative stressed that the present democratic Government in her country enjoyed the respect of all social sectors and in turn showed an open attitude to participation and dialogue with them, as had occurred during a public sector strike in May of this year which had been called without prior negotiation or conciliation but which had not been penalised by the Government. She pointed out that the Guatemalan legal system was governed by the following general principles which are relevant to the comments made by the Committee of Experts: the hierarchical structure of laws under which the Constitution is the supreme law; the automatic repeal of earlier laws where they contradict later laws (section 5 of the Act on the Judiciary); and the exclusion in penal law (section 7 Penal Code) which provides that "judges cannot create offences or apply penalties by analogy".

Section 47 of the Penal Code refers to duly remunerated work which provides prisoners with the means not only of satisfying their needs, but also with the opportunity of reducing their sentences. This was part of the normal penal procedures and there was no question of a specific sentence to forced labour, nor an additional form of punishment or aggravation of this sentence. This situation should be distinguished from the case of forced labour aimed at in the Convention.

Moreover, section 396 of the Penal Code and Legislative Decree No. 9 of 10 April 1963 had been automatically repealed when the country's Constitution came into force in 1986 and had referred to political and military or partisan organisations and not to labour organisations. As proof of the fact that these provisions were considered to be repealed, she noted that the Socialist Democratic Party was both registered as a political party and currently held seats in Parliament, a situation which would not have been possible if the provisions had been in force.

Section 419 of the Penal Code, she noted, refers to individual acts of refusal to carry out an administrative duty and is in no way related to collective activities which are covered further on in the Code under section 430. Nevertheless, when Decree No. 71-86 on freedom of association and the right to strike of public employees had entered into force on 1 January 1987, the application of this section became impossible by virtue of the principle that subsequent laws repealed earlier conflicting laws.

Section 390(2) of the Penal Code had been taken out of context, she said, because the full text referred to the sabotage and destruction or disturbance of undertakings contributing to the development of the country with a view to endangering national production or important public utility services, and sanctions would be applied to persons who provoked such sabotage and other persons involved in such activities. It therefore referred to criminal acts, not measures calling for the legitimate claims for social demands.

She stressed that her Government, since being in power over the past 17 months, had never resorted to the use of force against social demonstrations and respected the right to organise and citizen's rights; secondly, her Government did not intend to interpret anti-terrorist or anti-paramilitary legislation to the detriment of political, economic or social organisations, including trade unions; thirdly, the legislation which had given rise to the comments of the Committee of Experts was no longer in force not only because of the automatic derogation of prior contradictory texts by the Constitution but also because of the existence of specific laws on the subject-matter (such as Decree No. 71-86) and the principle that offences could not be applied by analogy. In November 1986 the Ministry of Labour had presented to the National Congress a recommendation that certain provisions be expressly repealed or amended and this Ministry was widely disseminating information on workers' rights in the mass media, in accordance with the recommendation made by this Conference last year. Her country had already received an offer of advice and co-operation from the Office and intended to bring the legislation into line with modern schools of thought in the field of labour law so as to promote and update the labour rights of Guatemalans.

The Workers' members were pleased with the present dialogue because some years ago the discussion of this case had been based on real and serious events. The years 1985 and 1986 had seen much improvement in the Government's attitude and in the legislation concerning Convention No. 87; however, much time was needed to remedy a situation which had gone downhill for many years. They noted that strikes such as that mentioned by the Government representative occurred in countries having a long tradition of democracy, and stressed that, while the right to strike was fundamental, it should only be used as a last resort after the exhaustion of recourse to conciliation. They noted the link between the two basic Conventions No. 105 and No. 111, and also that section 47 of the Penal Code provided for prison sentences for the expression of certain political opinions. Likewise section 390(2) of that Code went beyond the limit of preserving state security. The fact that ratified Conventions entered into the national legislation did not suffice for their application and that was why some provisions in the law still required revision. Since they were not aware of the contents of Decree No. 71, they hoped that the Office would receive a copy and any necessary further information on it. They hoped that the technical assistance and co-operation of the Office referred to by the Government representative would help in eliminating the divergencies existing between the present legislation and Convention No. 105.

The Employers' members thanked the Government representative for the background information supplied on the situation in Guatemala and noted that the problem under discussion concerned penal sanctions involving forced labour, which were imposed as a result of the expression of political views and for violations of labour discipline. Section 396 of the Penal Code provided for punishing persons who acted in obedience to communist or certain other ideologies or to any other totalitarian system and the Committee of Experts rightly was concerned here about the freedom to express political views as long as these political views were not accompanied by acts of violence. In any case under the Convention, a country could not provide for sentences of forced labour in connection with such activities. They noted that, according to the Constitution, human rights and international Conventions took precedence over any domestic law and that the Penal Code prohibition of sanctions in analogous cases prevented the extension of sanctions. They believed that the Government was ready to take a step further towards the formal removal of the provision in question because it accepted the delineation between freedom of expression of political opinions and the necessity to protect the security of the State. The Government might be even more willing because of the success of intensive dialogue with the ILO concerning Convention No. 87.

The Government representative of Guatemala repeated that her Government had not only taken due note of the Experts' comments but had sent a recommendation to Congress to repeal the provisions that were in contradiction with ratified Conventions. She undertook to supply a copy of Decree No. 71-86 and stressed that the legislation on political opinions was not in force because the Constitution did not prohibit the freedom to express political opinions; the contrary would be a case of interpretation by analogy. Her Government wished to repeal expressly these laws as soon as possible and before October a Bill to reform the present labour legislation, prepared with the participation of workers, employers and representatives of the Ministry of Labour, would be ready.

The Committee noted with interest the detailed information provided by the Government representative. It expressed the hope that the necessary measures would be taken in the very near future to make appropriate amendments to the provisions of the Penal Code so as to ensure conformity with the Convention in legislation and in practice, particularly on the points raised which had been the subject of comments by the Committee of Experts for a number of years. The Committee also suggested that the Government consider appropriate assistance from the ILO.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1(a) of the Convention. Criminal penalties involving compulsory labour imposed for expressing opposition to the established political, economic and social system. The Committee notes the Government’s indication in its report, in reply to the 2019 observations of the Guatemalan Trade Union, Indigenous and Peasant Movement (MSICG) on the criminalization of social protest and the consequent imposition of prison sentences involving compulsory labour (under section 47 of the Penal Code), that between 2016 and 2022 the Public Prosecutor’s Office provided training for 583 of its officials regarding the protection of human rights defenders. The Government also indicates that the Presidential Commission for Peace and Human Rights (COPADEH) launched proposals for public policies relating to human rights defenders and the programme for the protection of journalists.

The Committee also notes the Government’s indication, in reply to its previous comments on the existence of criminal proceedings for the illegal use of radio stations by indigenous communities, that between 2017 and 2021, a total of 287 complaints were registered in relation to the illegal use of radio frequencies, and in no cases had the accused persons registered their affiliation to any indigenous people. The Government points out that the radio spectrum can be used and enjoyed by any community, provided that the requirements of the General Telecommunications Act are met. The Committee requests the Government to specify the provisions of the Penal Code or other national legislation under which the illegal use of radio frequencies is penalized, indicating whether such provisions establish penalties of imprisonment.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1(c) and (d) of the Convention. Criminal penalties involving compulsory labour imposed for breaches of labour discipline or for participating in strikes. For many years the Committee has been asking the Government to amend the following sections of the Criminal Code, which establish prison sentences involving compulsory labour (in accordance with section 47 of the Criminal Code and section 17 of the Prisons Act) and can be imposed as a means of labour discipline or for participation in a strike:

–section 390(2), which provides that any person committing an act intended to paralyse or disrupt an enterprise that contributes to the economic development of the country shall be liable to imprisonment of one to five years;
–section 419, which provides that any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his/her position or office, shall be liable to imprisonment of one to three years; and
–section 430, which provides that public servants, public employees and other employees or members of the staff of service enterprises who collectively abandon their posts, work or service, shall be liable to imprisonment of six months to two years.

The Committee notes the Government’s indication in its report that the participation of prisoners in prison labour is voluntary. However, the Committee recalls that both the Criminal Code and the Prisons Act provide for compulsory work for all prisoners, referring to such work as an obligation and a duty.

The Committee notes that, in the context of the 2013 road map adopted as follow-up to the complaint examined by the Governing Body regarding the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Legislation and Labour Policy Subcommittee of the National Tripartite Committee on Labour Relations and Freedom of Association discussed on several occasions the amendment of the above-mentioned provisions of the Criminal Code with a view to taking the comments of the present Committee into account. It notes that, in the context of the discussion in relation to the follow-up on the implementation of the road map during the 346th Session of Governing Body of the ILO, the Government indicated that in October 2022 the President of the Republic submitted to the Congress of the Republic a legislative initiative containing the texts reviewing sections 390(2) and 430 of the Criminal Code that were approved on a tripartite basis in March 2018 and September 2022.

The Committee refers to its comments on Convention No. 87, and expects that the Bill amending sections 390(2) and 430 of the Criminal Code will be adopted without delay so as to limit the scope of these provisions to prevent the imposition of criminal penalties involving compulsory labour on persons who participate in a strike or for a breach of labour discipline. The Committee requests the Government to continue providing information on progress made in this respect. The Committee also once again requests the Government to take steps to amend section 419 of the Criminal Code.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing opposition to the established political, economic and social system, for breaches of labour discipline or for participating in strikes. The Committee recalls that for many years it has been requesting the Government to amend sections 419, 390(2) and 430 of the Penal Code as under these provisions prison sentences involving compulsory labour (in accordance with section 47 of the Penal Code) can be imposed to punish the expression of certain political views, as a means of labour discipline or for participation in a strike. Under the terms of section 419 of the Penal Code, “any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years”; under the terms of section 390(2), “any person committing an act intended to paralyse or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years”; and, finally, section 430 provides that “public servants, public employees and other employees or members of the staff of service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalties shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage”. The Committee further recalls that sections 390(2) and 430 of the Penal Code have also been the subject of its comments in the context of its supervision of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and that, further to the complaint made under article 26 of the Constitution for non-observance by Guatemala of Convention No. 87, a road map was adopted by the Government in 2013 in consultation with the social partners. In this framework, the Government undertook to submit to the prior consultation with the social partners the Bills designed to bring the national legislation into conformity with Convention No. 87 (point 5 of the road map).

The Committee notes the Government’s indication, in its report, that Bill 5199, that would amend sections 390(2) and 430 of the Penal Code, was presented to the National Congress on 31 January 2017. The Government adds that after more than 70 hours of work, trade union organizations and employers reached a bipartite agreement through social dialogue in June 2017 concerning the amendment of sections 390(2) and 430 of the Penal Code, specifying that those provisions “do not apply in cases of legal strike executed in accordance with current legislation, except for those who committed acts of violence against persons or against property or other serious infractions provided for” in the Penal Code. The Government states that in March 2018, the bipartite agreement was communicated to the National Congress asking for its approbation. Noting the Government’s indication that Bill 5199 entered into the second debate on 8 May 2018, the Committee observes that the draft legislation has not yet been adopted.

The Committee further notes that in November 2017 a tripartite agreement was reached, in collaboration with the ILO, which calls for the formation of a National Tripartite Commission on Labour Relations and Freedom of Association, which would monitor and facilitate the implementation of the 2013 road map. It notes that, on 6 February 2018, the National Tripartite Committee was established by Ministerial Decision No. 45-2018 and is composed of three subcommittees, namely on the implementation of the ILO road map, mediation and dispute settlement, and legislation and labour policy which is responsible for submitting tripartite agreed opinions on labour law initiatives to the National Congress. In that respect, the Committee notes that the Government indicates, that on 11 April 2018, a specific item was included on the agenda of the National Tripartite Committee to “issue opinions with regard to the recommendations made by the Committee of Experts on the Application of Conventions and Recommendations” concerning, inter alia, Convention No. 105. The Government states that the above-mentioned Bill 5199 does not provide for the amendments of sections 47 and 419 of the Penal Code, as such amendments would be addressed through social dialogue and tripartism in the subcommittee on labour law and policy of the National Tripartite Commission. The Committee refers to its previous comments where it noted that, according to the Government, work by persons convicted to a sentence of imprisonment is part of their rehabilitation and cannot be considered of a compulsory nature, despite section 47 of the Penal Code, which provides that “work by detainees shall be compulsory and shall be paid”. The Committee requests the Government to provide updated information on any progress made in the adoption of Bill 5199, and more particularly concerning the amendment of sections 390(2) and 430 of the Penal Code, as well as a copy of the new legislation once adopted. It further requests the Government to provide information on any progress made in the amendment of sections 47 and 419 of the Penal Code, in particular within the framework of the National Tripartite Committee on Labour Affairs and Freedom of Association.

Referring to its previous comments where it noted that the Government did not reply to the allegations made in 2012 and reiterated in 2015 by the Guatemalan Union, Indigenous and Peasant Movement (MSICG) concerning the criminalization of social protection and trade union action, the Committee notes the Government’s statement that it is unable to reply as it did not receive a copy of these observations. The Committee recalls that the MSICG referred to certain provisions of the Penal Code (and particularly section 256 of the Penal Code on the unlawful appropriation of property (usurpación)), which define the constituent elements of the offences that they criminalize in broad terms, such that conduct considered to be normal in the context of social protest, a strike or any other demonstration by society could be covered by these provisions and constitute a penal office. While noting the adoption in April 2018 of Order No. 5 2018 on the investigation of offences against human rights defenders by the Public Prosecution Service, the Committee observes that several United Nations Treaty Bodies, together with the UN Special Rapporteur on the rights of indigenous peoples and the Office of the High Commissioner in Guatemala, recently expressed concern about: (i) the increasing frequency of the abusive use of criminal proceedings directed against human rights defenders, journalists and indigenous leaders, on criminal charges ranging from threats to public safety, incitement to crime, instigation, unlawful association to sedition or aggravated trespass, which is considered as a flagrant offence which automatically involves restrictions on the right to a defence; as well as (ii) arbitrary criminal prosecution of indigenous community radio stations. They also expressed concern about draft legislation relating to terrorist acts, public order and non-governmental organizations that would restrict freedom of expression, assembly and association by defining criminal conduct in vague terms, among other reasons (CERD/C/GTM/CO/16-17, 27 May 2019, paragraphs 25–27; A/HRC/40/3/Add.1, 28 January 2019, paragraphs 41 and 44–46; CAT/C/GTM/CO/7, 26 December 2018, paragraph 38; CCPR/C/GTM/CO/4, 7 May 2018, paragraphs 36 and 38; A/HRC/39/17/Add.3, 10 August 2018, paragraphs 44, 51, 53, 59; and CEDAW/C/GTM/CO/8-9, 22 November 2017, paragraph 28). The Committee further notes that, in the framework of the Universal Periodic Review (UPR), the UN Human Rights Council also recommended that the Government ensure that human rights defenders can carry out their legitimate activities without undue impediment, obstruction or legal harassment (A/HRC/37/9, 2 January 2018, paragraph 111). The Committee urges the Government to take the necessary measures to ensure that no person who participates peacefully in a strike or opposes the established political, economic or social system may be subject to a prison sentence involving compulsory prison labour, including human rights defenders, journalists and indigenous leaders. It requests the Government to provide information on any measures taken in that regard, as well as concerning the observations previously made by the MSICG.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the Government’s report and the observations made by the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received on 3 September 2015.

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing opposition to the established economic and social system, for breaches of labour discipline or for participating in strikes. The Committee recalls that for many years it has been requesting the Government to amend sections 419, 390(2) and 430 of the Penal Code, as under these provisions prison sentences involving compulsory labour (in accordance with section 47 of the Penal Code) can be imposed to punish the expression of certain political views, as a means of labour discipline or for participation in a strike. Under the terms of section 419 of the Penal Code, “any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years”; under the terms of section 390(2), “any person committing an act intended to paralyze or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years”; and, finally, section 430 provides that “public servants, public employees and other employees or members of the staff of service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalties shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage”.

The Committee notes that the Government has not provided any information in its report on the measures taken to amend or repeal these provisions of the Labour Code. It refers to various provisions of the national legislation regulating prison work and indicates that work by convicted persons is part of their rehabilitation and cannot be considered to be of a compulsory nature. The Committee observes in this regard that, although section 65 of the Act on prison organization (Decree No. 33-2006) provides that during the treatment phase detainees may perform productive work, following authorization by the prison authorities, section 17 refers to work as “a right and a duty” and section 47 of the Penal Code provides that “work by detainees shall be compulsory and shall be paid.” Under these conditions, noting that, according to the Government, work by persons convicted to a sentence of imprisonment does not appear in practice to be of a compulsory nature, the Committee trusts that the Government will take the necessary measures to amend section 47 of the Penal Code accordingly.

In this respect, the Committee recalls that sections 390(2) and 430 of the Penal Code have also been the subject of its comments in the context of its supervision of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It observes in this respect that, further to the complaint made under article 26 of the Constitution for non-observance by Guatemala of Convention No. 87, a roadmap was adopted by the Government in 2013 in consultation with the social partners. In this framework, the Government undertook to submit to the Tripartite Commission on International Labour Affairs draft texts of the necessary legislative reforms to ensure the conformity of the national legislation with Convention No. 87. The Committee therefore urges the Government to adopt the necessary measures with a view to amending or repealing the provisions of sections 419, 390(2) and 430 of the Penal Code to ensure, in accordance with Article 1 of Convention No. 105, that no person who participates in a strike or is in breach of labour discipline or opposes the established economic or social system may be penalized by a prison sentence involving compulsory prison labour.

The Committee also notes that the Government has not replied to the allegations made in 2012, and reiterated in 2015, by the MSICG concerning the criminalization of social protest and trade union action. The MSICG referred to certain provisions of the Penal Code (and particularly section 256 of the Penal Code on the unlawful appropriation of property (usurpación)), which define the constituent elements of the offences that they criminalize in broad terms, such that conduct considered to be normal in the context of social protest, a strike or any other demonstration by society could be covered by these provisions and constitute a penal office. The Committee once again requests the Government to provide information on this matter.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the Government’s report as well as the observations made by the Indigenous and Rural Workers’ Trade Union Movement of Guatemala (MSICG) on the application of the Convention, which were received on 1 September 2012 and sent to the Government on 24 September 2012.

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing opposition to the established economic and social order, for breaches of labour discipline and for participation in strikes. In its previous comments, the Committee requested the Government to take the appropriate measures to amend sections 419, 390(2) and 430 of the Penal Code, given that, under these provisions, prison sentences involving compulsory labour (under section 47 of the Penal Code) can be imposed, in breach of the Convention, as a means of labour discipline or for participation in a strike. Under section 419 of the Penal Code, “any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years”; according to section 390(2), “anyone committing an act intended to paralyze or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years”; and finally, section 430 stipulates that “public servants, public employees and other employees or members of the staff of public service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalties shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage”. The Committee noted in particular that, although proposals to amend sections 390(2) and 430 of the Penal Code had been drafted with ILO technical assistance by the Tripartite Commission appointed in 2008 to examine the legislative reforms to be made in follow-up to the Committee’s comments, no legislative reforms had been made and no bill had been submitted to Congress.

The Committee notes that, according to information submitted by the Government to supplement its report on 5 November 2012, the Government indicates that there is no legislative initiative before Congress to amend the provisions of the Penal Code referred to by the Committee in so far as these provisions do not usually penalize strike action or breaches of labour discipline but rather events that undermine social order – and, in view of their repercussions, also sometimes social peace. The Committee notes that the Government submitted, as an example, a legal ruling based on section 419 of the Penal Code for a case of embezzlement of public funds by a local authority.

The Committee also notes that, in its observations, the MSICG underlines the State’s lack of political will to follow through with the necessary legislative reforms. According to the MSICG, the Government has been making formal announcements for many years about the agreements reached in various committees, the drafting of bills, the strengthening of the Tripartite Commission or the recourse to ILO technical assistance, without any of these announcements actually resulting in the adoption of the necessary reforms. The MSICG also refers to other provisions in the Penal Code which give a very wide interpretation of the elements constituting an offence, so that actions considered normal in the context of a social protest, a strike or any other demonstration by civil society could be covered by this definition (sections 256 and 391 of the Penal Code concerning unlawful appropriation of property (usurpación) and the definition of terrorism). The trade union believes that any legal provisions that criminalize social protests on the basis of offences that have been very broadly defined, excludes an environment conducive to the exercise of freedom of association; consequently, given the considerable restrictions imposed on the right to strike, exercising freedom of association runs the risk of trade union activities being penalized.

The Committee recalls that it has been making comments on the need to amend sections 419, 390(2) and 430 of the Penal Code for more than 30 years and that the Government has, on several occasions, given the assurance that the penal legislation will be brought into conformity with the Convention, the last time being in the context of the work of the Tripartite Commission appointed in 2008 to examine the legislative reforms to be made in follow-up to the comments of the Committee. It regrets to note that the Government no longer refers to its intention to review the abovementioned provisions and recalls that, in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it is also calling for the amendment of sections 390(2) and 430 of the Penal Code. Consequently, the Committee urges the Government to adopt the necessary measures with a view to amending or repealing the provisions in sections 419, 390(2) and 430 of the Penal Code, to ensure that nobody who peacefully participated in a strike or breached labour discipline may be penalized by a prison sentence involving compulsory prison labour. The Committee also requests the Government to send information on the observations made by the MSICG on the criminalization of social protests and trade union activities.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing political views, for breaches of labour discipline and for participation in strikes. For many years, the Committee has been referring to certain provisions of the Penal Code that may affect the application of the Convention. Under these provisions, prison sentences involving compulsory labour (under section 47 of the Penal Code) can be imposed, in breach of the Convention, as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike. The provisions in question are the following: section 396, under which “any person who seeks to organize or operate, or who participates in, associations which act in collaboration with, or in obedience to, international bodies that promote the communist ideology or advocate any other totalitarian system, or associations whose purposes offend against the law, shall be punished with imprisonment of from two to six years”; section 419, which stipulates that “any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years”; section 390(2), under which “anyone committing an act intended to paralyse or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years”; and, finally, section 430, which stipulates that “public servants, public employees and other employees or members of the staff of public service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalty shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage”.

The Committee notes with interest that the Act against Organized Crime (Decree No. 21-2006 of 10 August 2006) repealed section 396 of the abovementioned Penal Code. It notes moreover that, according to the Government, a tripartite commission was appointed in 2008 to examine the legislative reforms to be made in follow-up to the comments of the Committee, which included the amendment of sections 390(2) and 430 of the Penal Code. The Government points out that these proposals were drafted with ILO technical assistance and that they are backed by the Ministry of Labour and Social Affairs. In this respect, the Committee notes that the high-level mission that went to Guatemala in 2011 at the request of the Committee on the Application of Standards of the International Labour Conference, in the context of the examination of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), stressed the lack of progress made with respect to the legislative reforms recommended by the Committee of Experts – the provisions of sections 390(2) and 430 were also the subject of comments under Convention No. 87. The mission pointed out that no bill had been submitted to Congress by the tripartite commission of international affairs.

The Committee trusts that the Government will be able to indicate in its next report that the provisions of sections 419, 390(2) and 430 of the Penal Code have been modified or repealed, taking into account the comments it has been making for many years, to ensure that nobody taking part in a strike or breaching labour discipline may be penalized by a prison sentence involving compulsory prison labour. Meanwhile, the Committee requests the Government to send information on the application of these provisions in practice, including copies of any rulings handed down under these provisions. The Committee also refers to the comments it makes under Convention No. 87.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1(a), (c) and (d) of the Convention. Penal sanctions involving compulsory labour imposed for expressing political views, for breaches of labour discipline and for participation in strikes. In previous comments, the Committee noted the Government’s indication that some provisions of the Penal Code that may affect the application of the Convention, particularly Article 1(a), (c) and (d), are still in force but are not applied. The provisions in question are the following sections of the Penal Code: “Any person who seeks to organize or operate, or who participates in, associations which act in collaboration with, or in obedience to, international bodies that promote the communist ideology or advocate any other totalitarian system, or associations whose purposes offend against the law, shall be punished with imprisonment of from two to six years” (section 396); “Any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years” (section 419); “Anyone committing an act intended to paralyze or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years” (section 390(2)); and “Public servants, public employees and other employees or members of the staff of public service enterprises who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalty shall be doubled where such stoppage harms the public interest, and in the case of leaders, promoters or organizers of a collective stoppage” (section 430). The Committee also noted that under section 47 of the Penal Code labour is compulsory for prisoners.

The Committee has pointed out repeatedly that, in breach of the Convention, these provisions allow the imposition of prison sentences involving compulsory labour as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, and it requested the Government to repeal them. In its report, the Government indicates that, according to the opinion issued by the Technical and Legal Advisory Council of the Ministry of Labour and Social Insurance, sections 396, 419, 390(2) and 430 of the Penal Code can be applied without involving the violation of any ILO Convention, and furthermore prison labour is voluntary and there is no initiative to amend the above provisions of the Penal Code. Nevertheless, the Government indicates that, irrespective of these considerations, this subject will be placed on the agenda of the Tripartite Commission on International Labour Affairs.

The Committee hopes that the Government will provide information on the outcome of this issue in the Tripartite Commission on International Labour Affairs and that the necessary measures will be taken to repeal or amend the provisions referred to above. In the meantime, the Committee requests the Government to provide information on the application in practice of the above provisions of the Penal Code, including copies of any rulings handed down under these provisions.

With reference to the participation in strikes of public employees and in public services that are declared essential, the Committee refers to its comments on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it has also called for these provisions to be repealed.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the comments sent in 2005 by the Trade Union of Plant and Well Operators and Guardians of the Municipal Water Company and its Annexes (SITOPGEMA), and by the Trade Union Confederation of Guatemala (UNSITRAGUA). It observes that the abovementioned comments are relevant to the application of Convention No. 29 and refers the Government to its comments thereunder.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Article 1(a), (c) and (d) of the Convention. Sanctions for expressing political views, for breaches of labour discipline or participation in strikes. In earlier comments the Committee noted the Government’s statement that some provisions of the Penal Code that may affect application of the Convention, particularly Article 1(a), (c) and (d), are still in force but are not applied. The provisions in question are the following: “Any person who seeks to organize or operate, or who participates in, associations which act in collaboration with, or in obedience to, international bodies that promote communist ideology or advocate any other totalitarian system, or associations whose purposes offend against the law, shall be punished by imprisonment of from two to six years” (section 396); “Any public servant or employee who fails or refuses to carry out, or delays carrying out, any duty pertaining to his position or office, shall be punished with imprisonment of from one to three years” (section 419); “Anyone committing an act intended to paralyze or disrupt an enterprise that contributes to the economic development of the country shall be punished with imprisonment of from one to five years” (section 390(2)); and “Public servants, public employees and other employees or members of the staff of a public service enterprise who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. The penalty shall be doubled where such stoppage harms the public interest and in the case of leaders, promoters or organizes of a collective stoppage” (section 430). The Committee has noted that under section 47 of the Penal Code, labour is compulsory for prisoners.

The Committee has pointed out time and again in its comments that, in breach of the Convention, these provisions allow the imposition of prison sentences involving compulsory labour as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, and has requested the Government to repeal them. With regard to participation in strikes by public servants and employees of public services deemed to be essential, the Committee refers the Government to its comments on the application of Convention No. 87 in which it also asks the Government to repeal the provisions in question. The Committee hopes that the Government will take the necessary steps to align the legislation with the practice, which, according to the Government, already exists, and to ensure observance of the Convention.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Article 1 (a), (c) and (d) of the Convention. Sentences of imprisonment involving compulsory labour imposed for the expression of political opinions, participation in strikes and as a means of labour discipline. For many years, the Committee has been drawing the Government’s attention to certain provisions of the Penal Code which may have an impact on the application of the Convention, and particularly Article 1(a), (c) and (d). The Committee noted that, under section 47 of the Penal Code, sentences of imprisonment involving compulsory labour can be imposed as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, under the terms of the following provisions:

- section 396 of the Penal Code: Any person who seeks to organize or operate associations which act in collaboration with, or in obedience to, international bodies propounding the communist ideology or any other totalitarian system, or that are intended to commit offences, or who participates in such associations, shall be punished by imprisonment of from two to six years;

- section 419: Any public servant or employee who fails or refuses to carry out, or delays carrying out, any act corresponding to his function or responsibility, shall be punished with imprisonment of from one to three years;

- section 390(2): Persons who commit acts intended to paralyse or perturb enterprises which contribute to the economic development of the country shall be punished with imprisonment of from one to five years;

- section 430: Public servants, public employees and other employees or members of the staff of a public service enterprise who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. If such a stoppage prejudices the public interest or, in the case of leaders, promoters or organizers of the collective stoppage, those responsible shall be liable to double the penalty.

The Committee notes the Government’s indication that these provisions are still in force but are not applied in practice. The Committee hopes that the Government will take the necessary measures to bring the legislation into conformity with the practice that already exists according to the Government, thereby ensuring compliance with the Convention.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that the Government’s report contains no reply to previous comments. It must therefore repeat its previous observation on the following points:

1. With reference to its previous comments, the Committee notes with interest the text of Decree No. 143-96 repealing Legislative Decree No. 19-86 respecting voluntary civil defence committees (this Decree provided for compulsory enrolment and imposed penalties in the event of refusal to serve; the committee which examined the representation under article 24 of the Constitution against Guatemala had recommended its repeal). The Committee also notes that the civil defence committees have been disarmed and demobilized under international control, in the context of the peace agreements signed by the Government and the Revolutionary National Union of Guatemala (URNG).

2. In its previous comments, the Committee noted that Legislative Decree No. 9 of 1963, which established sanctions for various activities relating to communist or similar parties, had been repealed by Decree No. 130-96. The Committee notes that a copy of the latter text, which came into force on 23 December 1996, was supplied by the Government.

3. The Committee draws the Government’s attention to the comments that it has been making for many years on certain provisions of the Penal Code which are not compatible with the Convention, and particularly with Article 1(a), (c) and (d). The Committee had noted that, under section 47 of the Penal Code, sentences of imprisonment involving compulsory labour can be imposed as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, under the terms of the following provisions:

- section 396 of the Penal Code: "Any person who seeks to organize or operate associations which act in collaboration with, or in obedience to, international bodies propounding the communist ideology or any other totalitarian system, or that are intended to commit offences, or who participates in such associations, shall be punished by imprisonment of from two to six years";

- section 419: "Any public servant or employee who fails or refuses to carry out, or delays carrying out, any act corresponding to his function or responsibility, shall be punished with imprisonment of from one to three years";

- section 390(2): "Persons who commit acts intended to paralyse or perturb enterprises which contribute to the economic development of the country, without these acts necessarily involving recourse to violence, shall be punished with imprisonment of from one to five years";

- section 430: "Public servants, public employees and other employees or members of the staff of a public service enterprise who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. If such a stoppage prejudices the public interest or, in the case of leaders, promoters or organizers of the collective stoppage, those responsible shall be liable to double the penalty."

The Committee hopes that the necessary measures will be taken to bring the legislation into conformity with the Convention on these points and that the Government will provide information on the measures taken for this purpose.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's reports and the attached texts.

1. With reference to its previous comments, the Committee notes with interest the text of Decree No. 143-96 repealing Legislative Decree No. 19-86 respecting voluntary civil defence committees (this Decree provided for compulsory enrolment and imposed penalties in the event of refusal to serve; the committee which examined the representation under article 24 of the Constitution against Guatemala had recommended its repeal). The Committee also notes that the civil defence committees have been disarmed and demobilized under international control, in the context of the peace agreements signed by the Government and the Revolutionary National Union of Guatemala (URNG).

2. In its previous comments, the Committee noted that Legislative Decree No. 9 of 1963, which established sanctions for various activities relating to communist or similar parties, had been repealed by Decree No. 130-96. The Committee notes that a copy of the latter text, which came into force on 23 December 1996, was supplied by the Government.

3. The Committee draws the Government's attention to the comments that it has been making for many years on certain provisions of the Penal Code which are not compatible with the Convention, and particularly with Article 1(a), (c) and (d). The Committee had noted that, under section 47 of the Penal Code, sentences of imprisonment involving compulsory labour can be imposed as a punishment for the expression of certain political opinions, as a means of labour discipline or for participation in a strike, under the terms of the following provisions:

-- section 396 of the Penal Code: "Any person who seeks to organize or operate associations which act in collaboration with, or in obedience to, international bodies propounding the communist ideology or any other totalitarian system, or that are intended to commit offences, or who participates in such associations, shall be punished by imprisonment of from two to six years";

-- section 419: "Any public servant or employee who fails or refuses to carry out, or delays carrying out, any act corresponding to his function or responsibility, shall be punished with imprisonment of from one to three years";

-- section 390(2): "Persons who commit acts intended to paralyse or perturb enterprises which contribute to the economic development of the country, without these acts necessarily involving recourse to violence, shall be punished with imprisonment of from one to five years";

-- section 430: "Public servants, public employees and other employees or members of the staff of a public service enterprise who collectively abandon their jobs, work or service, shall be punished with imprisonment of from six months to two years. If such a stoppage prejudices the public interest or, in the case of leaders, promoters or organizers of the collective stoppage, those responsible shall be liable to double the penalty."

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee recalls the conclusions reached by the Governing Body at its 267th Session (November 1996) following the recommendations of the committee set up to consider the representation made by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and Public Services International (PSI) under article 24 of the Constitution concerning the application of the present Convention and Convention No. 29. It notes that the Government's report does not contain the information requested by the Governing Body on the action taken in relation to its conclusions. In this connection, the Committee hopes the Government will deal in full in its next report with the application of the following points concerning Article 1(a), (b) and (e) of the Convention.

2. The Government is requested to indicate the measures taken to ensure that compulsory labour exacted under the guise of service in the so-called Civil Self-Defence Patrols (PACs) and Voluntary Civil Defence Committees (CVDCs) from hundreds of thousands of people is not used as a means of political coercion or education of the indigenous population in particular, or for the purpose of economic development, or as a means of racial, social, national or religious discrimination.

3. The Committee refers to its previous observations regarding Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, Act for the Defence of Democratic Institutions (sections 2, 3, 4, 5, 6(2) and 7) and to sections 390(2), 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes, contrary to the provisions of the Convention. The Government has referred to the precedence of international Conventions over domestic law and indicated that the Committee's comments would be taken into account in the preparation of the new Penal Code. It said that the provisions contained in sections 4(1), (2), (4) and (7), 5(2), 13, 16, 18, 19, and 20 of Legislative Decree No. 9, Act for the Defence of Democratic Institutions had been repealed, but did not send a copy of the repealing legislation. The Committee noted that sections 2, 3, 4(3), (5) and (6), 5(1) and 6(2) were still in force and observed that the partial derogation of the Act on Democratic Institutions had not resulted in completely eradicating the divergency between national legislation and the Convention.

4. The Committee recalls once more that, with a view to bringing the legislation into harmony with the Convention, measures can be taken either to redefine the punishable offences in order to ensure that no one can be punished for having expressed political opinions or indicated their ideological opposition to the established political, social or economic system, or by according a special status to prisoners convicted of certain offences, under which they are free from the obligation to perform compulsory prison labour, although they retain the right to work upon request. The Committee notes that in relation to compulsory prison work the Government refers to the Act on the remission on sentences, indicating that the Penal Code effectively imposes the obligation to work but that the work is paid and leads to remission of the sentence. The Committee again requests the Government to send a copy of the Governmental Agreement of 1984 (No. 975-84), Regulations for Detention Centres, which, according to the Government, specifies the voluntary nature of work for persons convicted.

The Committee again observes that this matter has been a subject of comment for more than ten years and hopes that the Government will take the measures necessary to bring national legislation into conformity with the Convention and will report progress made to this end.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, Act for the Defence of Democratic Institutions (sections 2, 3, 4, 5, 6(2) and 7), and to sections 390(2), 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes, contrary to the provisions of the Convention.

Frequently the Government has refered to the predominance of international Conventions over domestic law and on other occasions it has indicated that the Committee's comments would be taken into account in the preparation of the new Penal Code which is in progress.

In its last report the Government indicated that the provisions contained in sections 4(1), (2), (4) and (7); 5(2), 13, 16, 18, 19 and 20 of Legislative Decree No. 9 Act for the Defence of Democratic Institutions have been repealed. The Committee requests to the Government to send it a copy of the laws repealed. The Committee notes, however, that sections 2, 3, 4(3), (5) and (6), 5(1) and 6(2) are still in force and observes that the partial derogation of the Act on Democratic Institutions has not resulted in completely eradicating the divergency between national legislation and the Convention.

The Committee recalls that, with a view to bringing the legislation into harmony with the Convention, measures can be taken either to redefine the punishable offences in order to ensure that no one can be punished for having expressed political opinions or indicated their ideological opposition to the established political, social or economic system, or by according a special status to prisoners convicted of certain offences, under which they are free from the obligation to perform compulsory prison labour, although they retain the right to work upon request.

The Committee notes that in relation to compulsory prison work the Government refers to the Act on the remission on sentences, indicating that the Penal Code effectively imposes the obligation to work but that the work is paid and leads to remission of the sentence.

The Committee also notes that in its last report the Government referred to a Governmental Agreement of 1984 (No. 975-84), Regulations for Detention Centres which, according to the Government, specifies the voluntary nature of work for persons convicted. The Committee requests the Government to send a copy of this Agreement.

The Committee observes that this matter has been a subject of comment for more than ten years and hopes that the Government will take the measures necessary to bring national legislation into conformity with the Convention and will report progress made to this end.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that no report has been received from the Government. It must, therefore, repeat its previous observation on the following points:

Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, and to sections 390(2), 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes. In its report for 1990-91, the Government stated that the Congress of the Republic has before it a preliminary draft of a Penal Code which will take into consideration the Committee's comments. The Committee notes that this matter has been the subject of its comments for more than ten years and once again recalls that, as stated in paragraphs 102 to 109 of its 1979 General Survey on the Abolition of Forced Labour, States which have ratified the Convention take upon themselves the obligation to suppress any form of forced labour, including labour as a result of a conviction in a court of law, in the cases set out in the Convention. The Committee also recalls that, with a view to bringing the legislation into harmony with the Convention, measures can be taken either to redefine the offences which can be sanctioned in order to ensure that no-one can be punished for having expressed political opinions or indicated their ideological opposition to the established political, social or economic system, or by according a special status to prisoners convicted of certain offences, under which they are free from the obligation to perform compulsory prison labour, although they retain the right to work upon request. The Committee trusts that the Government will soon take the necessary measures to ensure observance of the Convention on this point.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, and to sections 390(2), 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes.

In its report, the Government states that the Congress of the Republic has before it a preliminary draft of a Penal Code which will take into consideration the Committee's comments.

The Committee notes that this matter has been the subject of its comments for more than ten years and once again recalls that, as stated in paragraphs 102 to 109 of its 1979 General Survey on the Abolition of Forced Labour, States which have ratified the Convention take upon themselves the obligation to suppress any form of forced labour, including labour as a result of a conviction in a court of law, in the cases set out in the Convention.

The Committee also recalls that, with a view to bringing the legislation into harmony with the Convention, measures can be taken either to redefine the offences which can be sanctioned in order to ensure that no-one can be punished for having expressed political opinions or indicated their ideological opposition to the established political, social or economic system, or by according a special status to prisoners convicted of certain offences, under which they are free from the obligation to perform compulsory prison labour, although they retain the right to work upon request.

The Committee trusts that the Government will soon take the necessary measures to ensure observance of the Convention on this point.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

1. Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, and sections 390, subsection 2, 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes. The Committee noted that as a result of direct contacts in October 1988 between the Government and representatives of the Director-General of the International Labour Office, drafts were prepared to repeal the above provisions. The Committee noted that, in its report for the period ending June 1989, the Government stated that a draft text to repeal the above provisions was under study. The Committee trusted that the necessary steps would shortly be taken to bring the national legislation into line with the Convention and that the Government would report progress made to that end.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

1. Article 1(a), (c) and (d) of the Convention. For several years the Committee has been referring to the provisions of Legislative Decree No. 9 of 10 April 1963, and sections 390, subsection 2, 396, 419 and 430 of the Penal Code, under which sentences of imprisonment involving, by virtue of section 47 of the Penal Code, the obligation to work, can be imposed as a punishment for expressing certain political opinions, as a measure of labour discipline or for participation in strikes.

The Committee noted that as a result of direct contacts in October 1988 between the Government and representatives of the Director-General of the International Labour Office, drafts were prepared to repeal the above provisions.

The Committee notes that, in its last report, the Government states that a draft text to repeal the above provisions is currently under study.

The Committee trusts that the necessary steps will shortly be taken to bring the national legislation into line with the Convention and that the Government will report progress made to that end.